The fuzzy line between privacy and public interest

Reprinted from The Statesman, New Delhi 5^th December, 2010

 

"Newspapers have many functions and practices, some more attractive than others, but one function was to provide a means whereby corruption might be exposed. That could rarely be done without informers and often breaches of confidence."  'Cork v McVicar, The Times, October 31, 1984.
 

Ratan Tata’s petition before the Supreme Court seeking to enforce his right to privacy in the wake of the unauthorised leak of the Radia tapes promises to be an important test case on the law of privacy. In India, the right to privacy is derived from two sources: the common law of tort and constitutional law. The right to privacy does not constitute a specific fundamental right but has, nevertheless, gained constitutional recognition as being integral to the right to life under Article 21 of the Constitution. 
 

It is doubtless a frightening thought in any free society that what ought to have been taken for granted as private and privileged communications between two citizens should be tapped by government authorities in the course of income-tax investigations. Conversations between an employer and employee, a client and his lawyer or a businessman and his public relations consultant are in the realm of privileged communications and the government would have to establish a very strong case to justify tapping of telephone conversations. Could the investigation for possible income-tax violations not be carried out without eavesdropping on Niira Radia and her clients who may have had nothing to do with those violations?  The tapping itself is, on the face of it, a serious breach of privacy. The Supreme Court held in Peoples Union for Civil Liberties v Union of India that the right to hold conversations in one’s home or office is protected by the right to privacy afforded to the citizen and that telephone tapping could be justified under the provisions of the Telegraph Act, 1855 only in exceptional cases where there is a public emergency or a public safety interest.
 

In the Radia case, there is neither a public emergency nor a public safety concern which can justify the eavesdropping, much less for a purpose as banal as income-tax investigations. It is surprising, therefore, that in his petition before the Supreme Court, Mr Tata should not challenge the propriety of the government in tapping his conversations with Radia. What he confines his challenge to (as indicated in newspaper reports) is the unauthorised leak of those tapes, intended for the specific purpose of income-tax investigations against her, into the public domain. 
 

Mr Tata raises a limited issue but, nonetheless, an important one. Can telephone conversations tapped for a particular official purpose be used for any purpose other than the one they were intended for? There is authority to support this proposition although it may be dwarfed by the public interest disclosure argument. The Supreme Court has held in the context of the privacy of a banker-customer relationship, that while an intrusion into privacy may be permitted by legislative provisions, administrative, executive  or judicial warrants where sufficient cause is made out, the extent of the intrusion must be limited to what is necessary for the protection of the particular state interest.
 

In the second round of the celebrated English Spycatcher case, it was held that a person who came across confidential information disclosing corruption in the security service may be entitled to disclose it to the authorities but not to publish it to the world at large. In another English case, it was held that telephone intercepts which may have shown a breach of horse racing regulations could perhaps justify disclosure to the Jockey Club which regulates that sport but not to the media.
 

The duty of confidence may restrict the use of information beyond a specific purpose. An instance of misuse of information obtained for a limited purpose arose in the UK out of Myra Hindley’s confessions to the Moors’ murders two decades after the events. They were published in a book written by the investigating officer who was sued for breach of confidence. It was a case of confidential material obtained for policing purposes being used for non-policing purposes, in particular, for private gain. In such cases, not just the original confidant but those such as journalists, to whom the confidential information has been leaked, may be liable.
 

The limited purpose contention is likely to be countered by the journals which published transcripts of the Radia tapes with the argument that there is an overwhelming public purpose in having the tapes made public - the public has the right to know how the government is run and the media managed through a wide and intricate web of networking by corporate houses through lobbyists and media personalities. Where there are far-reaching implications for the public, the privacy argument may pale into insignificance. Even The Right to Information Act, 2005 protects personal information only to the extent that such information is unrelated to any public activity or interest. Mr Tata may not find it easy to establish that the conversations do not have serious public interest implications.

That the conversations between Mr Tata and his lobbyist are peppered with personal trivia such as about the latter’s Roberto Cavalli gown and the like may not be an adequate answer to the public interest defence. It may well be argued that if people mix personal with professional discussions, and the latter have a bearing on matters of public interest, they cannot complain of a breach of privacy. 
 

In a famous case, the Australian High Court refused an injunction against publication of sensitive information relating to the working of the government sought on grounds of breach of confidence with this reasoning:
 

"It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticise government action. Accordingly, the court will determine the Government’s claim to confidentiality by reference to the public interest. Unless the disclosure is likely to injure the public interest, it will not be protected. The court will not prevent the publication of information which merely throws light on the past workings of government, even if it be not public property, so long as it does not prejudice the community in other respects. Then disclosure will itself serve the public interest in keeping the community informed and in promoting discussion of public affairs."

 

Once the tapes have already entered the public domain, by means fair or foul, what purpose would a restraint order serve? Is it not too late then for Mr Tata to have approached the courts? In the celebrated Autoshankar case, the Supreme Court held that, once the matter was a part of the public record, the right to privacy was no longer available. This was a case that concerned the right of a publisher to publish the autobiography of a convict, "Autoshankar". It was contended that the intended publication which was to expose some sensational links between the police authorities and the criminal was likely to be defamatory and required to be restrained on that ground. The court held that the press had the right to publish what they claimed was the autobiography of Autoshankar in so far as it appeared from the public records, even without his consent or authorisation, and that if it went beyond that, it would amount to an invasion of his privacy.

In the Spycatcher  case that arose in England out of the publication of Peter Wright’s memoirs, the restraint against publication had to be eventually dissolved because the material had already been widely disseminated all over the world.  Wright had been a member of the British security service where he had held senior positions with access to highly classified and sensitive information. Wright alleged in his memoirs that the M15 plotted to assassinate Nasser, bug foreign embassies and destabilise the Wilson government.

Although an interim injunction was granted in England and upheld by the House of Lords, the book had already been published in the United States and become a bestseller. The newspapers defended their right to publish and successfully opposed the grant of a permanent injunction. The House of Lords held that Peter Wright and other members of the security service were under a life-long duty of confidence when it came to information obtained in the course of their service. But in order to prevent publication, it had to be established, which the government failed to do, that public interest would be harmed by the publication. The House of Lords endorsed the views of the Australian High Court set out above.

 

Having said that, there is authority for the proposition that information does not cease to be private merely because it has been shared with a limited audience. More so, if the information has been accessed unauthorisedly, it could be argued that the media cannot be permitted to benefit from its own wrong in publishing confidential information. If the information is not in the larger public domain and is not intended to be made generally available, it is arguable that it may be entitled to protection. At this stage, one does not know the full extent of the tapping ' there may be many more unpublished conversations in respect of which protection may be sought. Then again, Mr Tata is likely to be confronted with the argument that if the tapes already leaked to the public show prima facie evidence of a larger scam or conspiracy, it would be in the public interest to lay the whole lot bare, so that all the pieces of the jigsaw fall into place. If those who figure in the conversations are innocent of wrongdoing, it is in their interest to have the whole lot disclosed so as to set the record straight and correct any skewed impression that the public may have formed on the basis of select conversations. 
 

There is another argument that Mr Tata must be ready to answer, particularly in the light of his allegation, published very recently in the media, of having resisted a demand by a minister for a bribe of Rs 15 crore in connection with his attempt to start an airline. Mr Tata is reported to have resisted the demand saying, "I want to go to bed at night knowing that I haven’t got the airline by paying for it."  The media has every right to correct the projection by an individual of an inaccurate image of himself in the public eye. In an English case concerning the singer, Tom Jones, Lord Denning said:
 

Whichever way the Supreme Court eventually decides in the Tata matter, given the range of privacy-related issues it raises and the nascent stage at which the Indian law on privacy still is, it promises to be a landmark judgment.